AAUP National
On November 13, 2015, the AAUP filed with the American Federation of Teachers an amicus brief before the US Supreme Court arguing that the payment of agency fees by non-members in collective bargaining unions to support union representation is constitutional. The case started when the plaintiffs, sponsored by organizations seeking to weaken unions, sued the California Teachers Association and a local California school district seeking to invalidate agency fee provisions in the collective bargaining agreement, arguing that agency fee clauses in the public sector violate the First Amendment. On June 29, 2015, the Supreme Court granted certiorari, and thereby agreed to hear the appeal. The AAUP amicus brief argues that collective bargaining, supported by the agency fee system, significantly benefits the educational system, and that removal of the ability to charge agency fees would upset the balance set by the states and burden the rights of union members.
Agency fee has been deemed constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Last year in Harris v. Quinn, the Supreme Court declined to overrule Abood, although the Court raised questions regarding its vitality. Anti-union groups brought the Friedrichs case in California and pushed it through the courts. In the Supreme Court, the Friedrichs plaintiffs have advanced the argument that all agency fee arrangements in the public sector violate the First Amendment as they compel non-members to pay for activities that they believe address matters of public concern. The plaintiffs also argued in the alternative that even if some agency fee system is unconstitutional, the current opt-out system of charging agency fee payers in unconstitutional.
The Supreme Court accepted two questions for review: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Given the questions before the Court there are several potential outcomes. First, the Court could answer “no” to both questions, and leave the law status quo. Second, the Court could answer the first question in the affirmative, and it would overrule Abood and prohibit agency fee in the public sector. This would impose a right to work style system nationwide in the public sector. (This would render the second question before the Court moot.)
Third, the Court could answer the first question “no”, thereby allowing agency fee, but could answer the second question “yes”. The second question addresses the current law regarding agency fee payers and objectors. Under the current law, non-members can be charged a rate equivalent to full union dues unless they affirmatively object. Once a non-member formally objects, they can only be charged the agency fee rate. This creates an “opt-out” situation in which non-members must affirmatively opt out to pay the lower agency fee rate. If the Court answered the second question “yes”, then agency fee would still be permissible, but all non-members would be considered objectors automatically and could therefore only be charged the lower agency fee rate.
Finally, in answering the questions, the Court could leave some charges for agency fee standing, while substantially changing the amount that can be permissibly collected. For example, the Court could narrow the types of activity for which agency fees can be charged, such as by excluding from chargeable activity work such as bargaining for tenure or pay. It is difficult to anticipate what such a ruling would look like.
The AAUP/AFT brief supports the charging of agency fees and provides examples from AAUP higher education chapters of the benefits of the agency fee system. The brief provides strong arguments in favor of the agency fee system including that agency fees are an essential component of the states’ management of some of their most important institutions; that petitioners’ facial, all-or-nothing challenge to all aspects of every agency fee ever charged anywhere, on the basis of no record at all, should be rejected on its face; and that to the extent the court entertains petitioners’ facial claim, it must account for petitioners’ failure to challenge the underlying regime of exclusive representation in collective bargaining. The brief explains that “fair share fees are . . . used to fund a wide range of other activities that promote the state’s compelling interest in providing students a high quality education and directly benefit nonmembers.” Thus, based on the significant benefits provided by agency fees, compared to the minimal burdens, charging agency fees to non-members does not violate the First Amendment.